No. 12429 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

DONNA J. TURK, Plaintiff and Appellant,
-VS

# - HENRY V. TURK, Defendant and Respondent.

Appeal from: District Court of the Eighth Judicial District, Honorable R. J. Nelson, Judge presiding. Counsel of Record: For Appellant: Dola N. Wilson argued, Great Falls, Montana For Respondent: Jardine, Stephenson, Blewett & Weaver, Great Falls,

Montana James E. Aiken argued, Great Falls, Montana Dzivi, Conklin, Johnson and Nybo, Great Falls,

Montana Amicus Curiae Neil E. Ugrin argued, Great Falls, Montana

Submitted: January 16, 1974Mr. Justice John Conway Harrison delivered the Opinion of the Court. This appeal results from a denial of a petition to modify
a custody award of children by the district court of the eighth judicial district, county of Cascade. Donna Turk (Fitzgerald) appellant and Henry Turk respondent
were divorced in October 1967. The two children of the marriage, Vincent and Verna,were awarded to appellant. InAugust 1968, respondentpetitioned the court to modify the decreewith respect to the custody of the two children. Inhis petition he alleged that appellant had given him the children on July 8,1968. He further alleged appellanthad proven herself anunfit person to have the care and custody of the children. Following hearing, at which both parties appearedwith counsel, the court awarded respondent custody of the children. Following his divorce from appellant, respondent married
awomanwith two children and they laterhad one child. In addition,respondenthad taken into his home to raise a boy,Andy Hawkinson Turk,who had been abandoned by his mother seven years before. Respondent classified himself as a farmer and a linesman. He had a small farm in the vicinity of Fairfield, Montana,where the family lived. Heworked full time as a linesman for the Hartz Construction Company. The farm consisted of 160 acres plus 60 leased acres, onwhich the family raised some 60 head of sows, 20 head of milk cows, 80 head of sheep and somehorses. Appellant, following her divorce from respondent,married one Ronald Fitzgerald and at the time of her petition had two small childrenby Mr. Fitzgerald. Problems developedbetween the parties as to visitation rights of appellant, which caused appellant to petition the district court for the custody of the children, alleging shehad reestablishedahome where they could now be properly cared for. Hearingwas had on June 29, 1972. At the hearing considerable evidencewas introduced concerning appellant's allegations that respondentwas a severe disciplinarian and abused the boys by making them do farm choreswhen they should have been in school. The disciplinary matter
arosewhen theboys got involved in taking some ice cream from
a truck. Thiswas talked about in themmmunity resulting in reports to law enforcement people and to thewelfare department. In addition, at the hearing, the school records of all the Turk childrenwere discussed and itwas charged that the boys missed
orwere late for school far too often for their scholasticwelfare. A thorough airing of the allegations raised by appellantwas had at the hearing. Therewas testimony of neighbors, local law enforcement officers and schoolpersonnel. 

### A Mrs. Rita Bond, an employee of the school,who saw the children each day of school,described the children as "adjusted and happy and very capable children". Based on her observations at school, she testified theywerewell behaved and shehad never seen any of them beaten or abused. FrankAllum,who had worked for the Turks in 1971and 1972,never saw the children abused or overworked and, inhis opinion, the childrenwere loved by their parents. ~espondent'ssupervisor testified Turkwas a fine employeewith no reputation for cruelty or hot temper. Hugh Maxwell, a neighbor, testified the familywas a well adjusted happy family and that all the children s~emed to be onebig family. He described the parents as "generous,kindhearted people.I1 At the hearing testimonywas heard from respondent'switnesses
as to conditions in the Turk home, thework of the children around the ranch, their school records and the disciplinary actions taken by respondentwhen he learned of the ice cream incident. All of this testimonywas before the trial judge for considerationwhen he issued an order providing that: (1) pending a further order of the courtVincent and Verna were placed in the care, custody and control of Donna Fitzgerald; (2) the matter was referred to the Cascade County Court of Conciliation directing it to (a) make a complete investigation of the background, family situation,and all related matters as to the named minor children, (b) make psychological testing of all the children and adults involved,and

(c) that allparties were to cooperate in the investigationand testing; (3) a report to be made to the Court following the investigationand testing. Thereafter an informalhearing was held on September 8, 1972, before the Court of Conciliationwith allparties present with counsel, Dr. Edward Shubat,a clinical psychologist,gave testimony on his findings obtained by interviewsand tests. He concluded that both homes were fit and proper homes to raise the children but that for the best interests of the children they should be kept together as a familyunit in the Turk home, with visitation rights to appellant. Thereafter, on September 11, 1972, the trial court returned Verna and Vincent to respondentwith reasonablevisitation rights in appellant. Appellant appeals and raises three issues: 

### 1. That the evidence does not support the district court's order. 2. That the decision of the trial court is contrary to the
case law and statutory provisions of Montana, and 3. That the district court abused its discretionand committed reversible error in awarding custody to respondent, Henry Turk. Issues one and two will be discussed together. There was substantial and credible evidence presented to the trial court for its holding. In addition, Judge Nelson utilized para legal facilities available to him, through the Court of Conciliation, to make independent investigations of the conditions inboth homes, and use psychological tests to ass& him in arriving at a proper solution of the problem, a solution that would be in the best interests of the children. In a long series of cases this Court has adhered to the principle in custody cases that the discretionary power of the trial courtwill not be disturbed unless there is a clear showingof an abuse of that discretion. Jewett v. Jewett, 

### 73 Mont. 591, 237 P. 702. Too, it has longbeen recognized as the law of this state that the Court considers of prime import the welfare and best interests of the children. McCullough v. McCullough, 159 I4ont. 419, 498 P.2d 1189; Simonv, Simon, 154Mont. 193, 461 P.2d 851. Appellant argues that in a recent case, Baertsch v, Baertsch, 155 Mont. 98,467 P.2d 142, the decision hinged on a "single incident" of a mother's violent temper as the controlling factor in support of the district court's ruling that itwas such a

11change of conditions" that it justified the modification as to custody of a child. Not so! To construe Baertsch as appellant would have us do would be to limit the trial court's discretionary power. Baertsch is factuallynot comparable to the instant case. Here, the evidencewas both homes offered an acceptable home situation, contrary to the findings in Baertsch, We find no merit in issues one and two, Appellant in issue three, attacks the use by the trial court of the post hearing investigativeprocedure, including an informalhearing before the Court of Conciliation. We do not find merit in this contention. The record is bare as to any objections
on appellant's part to Judge

### el son's post hearing effort to obtain
as much information as possible by investigativeand testing procedures before making his final order on custody. Neither did appellant object to the courtmaking the report of the Court of Conciliationa part of the record. Itwould appear from the record that appellant chose to go along with all the post hearing efforts believing the decision would be in her favor, and only when the final orderwas made did she object. The time for objectionwas before the trial court's final order. 

### It cannotbe considered for the first time on appeal. Close v. Ruegsegger, 143 I.lont. 32, 386 P.2d 739;Teesdalev. AnschutzDrilling Co., 138 Mont. 427, 357 P.2d 

### 4;Carpenter v. Free, 138 Mont, 552, 357 P.2d 882. The order of the district court is affirmed.

l We Concur:

Chie ~ustice. 

# 2

................................ Justices.